The notion that the Supreme Court should be fundamentally altered in order to expand democracy is one that has been gaining momentum among liberals for years. Justice Ruth Bader Ginsburg’s death caused support for that initiative to immediately spread like wildfire, making court-packing into a principal presidential campaign issue.
At Amy Coney Barrett’s confirmation hearing on Wednesday, Republican Sen. Chuck Grassley raised another long-debated proposition that would bring a big change to the court — one with notably lower stakes than court-packing but nonetheless a consequential one — as he expressed his support for allowing video broadcasting of Supreme Court proceedings.
Grassley and his Senate Judiciary Committee colleague, Democrat Amy Klobuchar, have introduced legislation with bipartisan support from other committee colleagues that would enable presiding federal court judges, including the Supreme Court’s chief justice, to allow cameras into the courtroom. “Many of us believe that allowing cameras in the courtroom would open the courts to the public and bring about a better understanding of the judiciary,” Grassley said on Wednesday.
Nebraska Republican Sen. Ben Sasse disagreed with Grassley. “I think we’d get a lot more Michael Avenatti nonsense if we had cameras in the court,” he said. “I think we right now get a lot of transparency into the court, but we don’t have as much theatrics from those who are arguing before the court, so I think more cameras in the court is a bad idea.”
Supreme Court justices have generally shared Sasse’s opinion. Grassley quoted former Justice David Souter who, when he was before the House Appropriations Committee in 1996, said against cameras, “I think the case is so strong that I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body.” Former Justice Anthony Kennedy, who was testifying alongside Souter, was similarly opposed.
In a 2011 Senate Judiciary Committee hearing, Justice Stephen Breyer largely concurred. “We’re conservative, and you would be too if you were there,” he told the committee, later saying, “Until we become reasonably convinced that won’t hurt the institution, you’re going to get a conservative reaction.” The late Justice Antonin Scalia agreed. Testifying with Breyer, he rejected the argument that Grassley brought forward on Wednesday. “If I really thought that the American people get educated, I would be all for it,” he said. Scalia’s fears were that bits and pieces of the video would be shown and end up misrepresenting the proceedings. Justices Kagan, Sotomayor, Alito, Kavanaugh, Thomas, Roberts, and Alito are all on record expressing their reservations, too.
Breyer’s commentary is particularly compelling. A Clinton appointee, he generally sides with the liberal position in controversial cases. Nonetheless, this demonstrates that his vision of the court is incredibly reserved and protective, as much as the conservatives. His point in calling the court “conservative” was not about ideology or jurisprudence at all but about its effort to remain as insulated as possible from politics.
Beyond the cameras, even the liberals’ foremost champion on the court, Ginsburg, was extremely protective of the institution. “Nine seems to be a good number, and it’s been that way for a long time,” she told NPR in 2019. “I have heard that there are some people on the Democratic side who would like to increase the number of judges. I think that was a bad idea when Franklin Delano Roosevelt tried to pack the court … [and] I am not at all in favor of that.”
The whole thing is a lesson in just how differently Supreme Court justices think about big institutional changes, as compared to those in Congress, in punditry, and in activism. It could be that the justices take those positions for the sake of self-protection, but it looks more like it grows out of a particular kind of reverence for the institution.
Grassley asked Barrett if she would keep an open mind on the camera question — she said she would. Justice Gorsuch said the same in his 2017 confirmation hearings. Remember that under Grassley’s bill, Chief Justice Roberts would have the authority to allow cameras or not. If it were to pass, he would presumably consult his colleagues but considering his stated position — “I don’t think there are a lot of public institutions, frankly, that have been improved in how they do business by cameras,” he said in 2018 — cameras in the court remain a long shot for now.
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